DMA compliance: the Commission’s flawed “equivalence” logic

Not impressed. PayorOK, Meta & DMA: EU Commission says paid service is not “equivalent” to ad-funded service. The reason? You need “access to an online payment service” [§91] + the user experience (UX) is different due to other access conditions.

Basically, per the decision of the Commission (EC), a choice between “pay with your wallet, or let someone else pay for you” is wrong under DMA and only “let someone else pay for you or let someone else pay for you” would be valid. So “less personalised ads or more non-personalised ads” might not even be equivalent then, given UX differences?

The EC’s reasoning is unconvincing:

– “Specific choice” and “valid consent” are separate conditions under Art. 5(2) DMA [para. 50-52]. Really? All regulators say that valid GDPR consent requires an actual choice. The EC could have explained better.

– “There is no equivalence” between pay & OK. Para 91 (+133) is ludicrous. Of course payment for a digital service involves other processing and other conditions. Do they want to allow cash payments maybe?
Interestingly, the EC’s position in para. 91 isn’t really aligned with the “my data is mine” narrative of campaigners.

– The EC seems to understand “equivalent” as “identical UX”. See 137: “the Commission’s assessment of the less personalised alternative cannot be limited to ascertaining whether there is a degradation in quality for end users, but necessarily also includes ascertaining whether there are differences with the service provided to end users who provide consent
+ 138: “differences between a service and its less personalised alternative are likely to influence end users that are considering availing themselves of the specific choice
+ 144: “the fact that the proposed less personalised alternative features different conditions of access for end users is sufficient to establish that the SNA and the With Ads options are not equivalent
So should “equivalent” service really mean an “identical” one in UX terms? Is that our standard now?

– Low adoption = indication of non-equivalence, says the EC. So a commercially less successful option is automatically non-equivalent? [95]

– Very selective reading by the EC of the CJEU’s Bundeskartellamt judgment. In one para., the EC looks only at the English version, ignoring the wording in other languages; next, it compares languages in another context. [compare 106 & 107]

– Para 156 is gold. Being forced to have a less profitable service? We don’t care unless you prove by reasoned request that it’s commercially unviable.

– 163: patronising EC suggests that users facing Pay or OK for streaming/… don’t understand it re social media.

– 166 repeats the idea that social media content is of no value outside the platform, unlike films/music/… Some creators might disagree.

– 181 & following: you started free? Too bad, you’re stuck with it because of lock-in & network effects.

Part 2, on consent & GDPR: https://lnkd.in/eqx4taT3